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Why it Almost Doesn't Matter if the Police Didn't Read You Your Rights

By Don Murray, Partner at the New York City Criminal Defense Law Firm Shalley & Murray

Let me start at the end.

A short time ago in the middle of the summer of 2015, Judge Stephen Knopf, a Supreme Court Judge in Queens County, found, after a hearing, that Police Officer Robert Mayer, of the Brooklyn 75th Precinct, NYPD was credible. Hardly news. Police Officers are found credible by plenty of Judges all the time, every day, and in many cases for the excellent reason that they were in fact credible.

In this particular case, however, Officer Robert Mayer had testified that he remembered the exact, word for word conversation he had had with my client regarding his Miranda rights from a year and a half prior to Officer Mayer's testimony. Officer Mayer was not testifying that he remembered the gist of the conversation, or the general tone of the conversation. He point blank specifically laid claim to remembering word for word, the entire conversation start to finish.

Although he couldn't remember the Miranda warnings themselves. For that, he needed to refresh his recollection with the preprinted warnings contained in his memo book...

...the memo book that he by unlucky coincidence didn't have with him at the time of the conversation...

...the memo book that therefore contained no notes regarding having any interaction with my client at all.

Therefore, although he couldn't precisely remember the Miranda warnings, those warnings that Officer Robert Mayer must no doubt have recited umpteen times over his years as a police officer, and therefore words that he has been practicing for the last one and a half years since his interaction with my client, he COULD precisely remember, verbatim, what my client said as he read these famous warnings.

Lest you think that perhaps his police reports must have refreshed his recollection, think again. Officer Robert Mayer prepared no police reports. None. Zero. He had no memo book entry. He prepared no paperwork. He had never testified before in any proceeding in connection with the case.

But he sat in the witness chair and swore under oath to Judge Knopf that he remembered it all, a year and a half later.

What else did this remarkable memory man remember of the encounter with my client? Very little. To the extent that Judge Knopf allowed me to test Officer Robert Mayer's memory on cross examination, Officer Mayer couldn't remember where the other police officer involved was, couldn't describe the location in anything more than generic terms, and couldn't remember a single item of clothing worn by my client at the time of the encounter. In fact, Officer Mayer barely acknowledged that my client was wearing clothes, answering the question about this point in such a way as to leave open the possibility that my client may have been scantily clad, almost naked. Of course questions meant to test Officer Mayer's memory were objected to systematically by the prosecutor and initially begrudgingly over ruled and finally, when it was clear that Officer Mayer was going to be forced to answer a string of questions probing his memory with the phrase "I don't know" or "I don't remember" I was encouraged to move along.

Given that the person encouraging me to move along to something else was the same person who would soon be deciding the legal and factual issues in question, I moved along.

My client testified in this case and testified that Officer Mayer had not reviewed his Miranda warnings. My client testified to remembering the event from so long ago because he had never been arrested before and the incident therefore stuck out in his mind. In addition, we have been discussing that evening almost every time we have met since the first time we met shortly after the incident. My client is a mechanical engineer, genius. He is a military veteran. He is a former Special Police Officer for New York City. He has no prior criminal history.

The concept that the police did not review his Miranda warnings with him was also supported in part by the testimony of the other police officer who testified at the hearing (the one who Officer Robert Mayer couldn't remember anything about). You see, that officer testified that when he entered my client's apartment the first thing he did was to approach him and ask him a question about items they were looking for. He point blank conceded that he did not advise my client of his Miranda warnings. He just blustered into the apartment and started firing away questions to my client who was handcuffed on the ground.

So it isn't as if there isn't precedent here. In the very same case, the other officer didn't do it, and had a conversation with my client. So since one of the officers conceded that he blustered in to the apartment and began asking my client questions without calmly reviewing the Miranda warnings, is it really so outlandish to think that his fellow officer just might have done the same thing?

Oh but right. He remembered doing it. And he remembered the exact words my client said in response as he was doing it. With no notes. With no paperwork.

He just remembered.

A year and a half later.

Even though he couldn't remember the Miranda warnings themselves.

That he says on a regular basis.

Judge Knopf found that this was credible.

Miranda is Dead

As an experienced criminal defense lawyer, I already knew that Miranda is something of a cruel joke. Miranda is the most widely recognized and least understood of all famous criminal cases.

Since the Miranda decision, our Courts have systematically made sure that a decision that really did almost nothing but help the Government establish the voluntariness of confessions had no relevant impact on the prosecution of criminal cases in the United States. The Miranda decision didn't even do much for Ernesto Miranda, other than to make him famous. His case was not dismissed because of the Supreme Court ruling. Mr. Miranda's case was sent back to Arizona with instructions to give him another trial where they were not allowed to use his statement in their case. Arizona took Mr. Miranda to trial again, convicted him again, and sent him back to jail again.

(FUN FACT: No case in the history of the United States has ever been dismissed because of a failure to read Miranda warnings - since that has never been and never will be the remedy for a failure to read Miranda warnings.)

Since the Miranda decision our Courts have ruled that statements obtained in violation of Miranda while not admissible in the Government's case, CAN be used to cross examine a defendant who testifies to anything that is at all different from such an illegally obtained statement.

(Do you see the uncomfortable irony here? Evidence that we all agree was obtained illegally, as in by a method that was intentionally against the law by armed Government agents, is ultimately allowed to be used by the Government nevertheless. The Government is not punished, nor is the armed Government agent who intentionally violated the United States Constitution.)

This is one reason why many police departments affirmatively don't care about Miranda - since even in the unlikely event that a statement is suppressed from the Government's case, it can still serve as a deterrent to keep a defendant from testifying and getting his defense out to the jury.

I knew all of this already. I knew what a joke Miranda was and is.

But the Judge found that Officer Robert Mayer, the miracle long term memory man of the 75th Precinct was credible.

This illustrated for me the following rule of thumb:

If a police officer testifies that he read you Miranda warnings, then he read you your Miranda warnings, even if he didn't.